University of Nebraska law professor Eric Berger says the fact that the state is pushing for an execution date and Carey Dean Moore isn’t fighting it makes it more likely there will be an execution this year.
“But, that said, I think the sort of uniqueness and bizarreness of the protocol that Nebraska chose certainly casts an additional cloud over their effort to do the procedure,” Berger tells Nebraska Radio Network.
Berger refers to the four-drug protocol proposed by the state, but never used before.
Nebraska proposes using Diazepam, a sedative, followed by the opioid Fentanyl Citrate. Cisatracurium Besylate would be used to paralyze the inmate with Potassium Chloride to stop the heart, causing death.
Legal challenges in other states have proven successful to block executions there.
Still, Berger says those two factors remain the overriding reason Nebraska might execute its first inmate since 1997.
“When you have those two things: an inmate who doesn’t have any legal challenges and doesn’t want to bring any more, and a state that wants to execute someone and that appears to have the drugs, I would say it’s probably more likely than not,” Berger says.
Some legal challenges to Nebraska’s efforts remain pending.
One lawsuit challenges the governor’s involvement in the petition drive which landed the death penalty on the ballot, contending he violated the separation of powers. Voters overturned the legislature’s decision to repeal the death penalty and reinstated it. That lawsuit also argues the inmates on death row had their sentences commuted to life in prison. The lawsuit didn’t persuade a lower court and is now before the Nebraska Supreme Court.
A lawsuit has been filed, asking that source of the drugs proposed to be used in the Nebraska lethal injection protocol be made public.
Another lawsuit challenges the state rulemaking procedure used to establish the lethal injection protocol. It also has lost on the trial court level, but that decision likely will be appealed.
Moore, who is 60, was sentenced to death for killing two Omaha taxi drivers in 1979: Reuel Van Ness and Maynard Helgeland. Moore has been on death row longer than any other of the state’s 12 condemned inmates.
AUDIO: Brent Martin reports [:50]